RE MANDJAR RESTAURANT GROUP PTY LTD (IN LIQUIDATION); EX PARTE GREGORY PAUL QUIN AS LIQUIDATOR OF MANDJAR RESTAURANT GROUP PTY LTD (IN LIQUIDATION) [2026] WASC 289

[2026] WASC 289 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : RE MANDJAR RESTAURANT GROUP PTY LTD (IN LIQUIDATION); EX PARTE GREGORY PAUL QUIN AS LIQUIDATOR OF MANDJAR RESTAURANT GROUP PTY LTD (IN LIQUIDATION) [2026] WASC 289 CORAM : HILL J HEARD : 3 JULY 2026 DELIVERED : 3 JULY 2026 PUBLISHED : 20 JULY 2026 FILE NO/S : COR 68 of 2026 MATTER : IN THE MATTER OF MANDJAR RESTAURANT GROUP PTY LTD (IN LIQUIDATION) EX PARTE GREGORY PAUL QUIN AS LIQUIDATOR OF MANDJAR RESTAURANT GROUP PTY LTD (IN LIQUIDATION) First Plaintiff MANDJAR RESTAURANT GROUP PTY LTD (IN LIQUIDATION) Second Plaintiff Catchwords: Corporations - Winding up - Where company in liquidation was trustee of trust - Application for appointment of liquidator as receiver and manager of company trust property - Application for directions - Turns on own facts -- 1 of 7 -- [2026] WASC 289 Page 2 Legislation: Corporations Act 2001 (Cth) sch 2 s 90-15 Supreme Court Act 1935 (WA) s 25(9) Result: Application granted Directions given Category: B Representation: Counsel: First Plaintiff : O J Mavrick Second Plaintiff : O J Mavrick Solicitors: First Plaintiff : Pragma Lawyers Second Plaintiff : Pragma Lawyers Case(s) referred to in decision(s): Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524 Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310 -- 2 of 7 -- [2026] WASC 289 HILL J Page 3 HILL J: (This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.) 1 On 15 April 2026, the first plaintiff was appointed liquidator of the second plaintiff, Mandjar Restaurant Group Pty Ltd (Company), pursuant to s 491(1) of the Corporations Act 2001 (Cth) (Act). Prior to this appointment, the Company was the trustee of the BHC Trust (Trust). 2 By originating process dated 3 June 2026, the plaintiffs seek orders for the first plaintiff to be appointed as receiver and manager of the assets of the Trust, as well as directions pursuant to s 90-15 of sch 2 of the Act (IPS). 3 In support of the application, the plaintiffs have filed four affidavits, being: (a) two affidavits of Gregory Paul Quin, the first plaintiff and liquidator of the Company, filed on 3 and 29 June 2026; and (b) two affidavits of Oliver John Mavrick, a legal practitioner employed by the plaintiffs' solicitors, filed on 22 June and 1 July 2026. Factual background 4 The Company was incorporated on 17 January 2020.1 Its sole director is Jason James Hutchen, and its sole shareholder is Brittney Hutchen-Craig.2 5 On 24 January 2020, the Trust was established by a trust deed, which appointed the Company as trustee of the Trust (Trust Deed).3 Pursuant to cl 19.1 of the Trust Deed, the Company would be disqualified from holding office as trustee of the Trust if a resolution was passed under s 491 of the Act for the winding up of the Company.4 1 Affidavit of Gregory Paul Quin filed 3 June 2026 [12(a)]. 2 Affidavit of Gregory Paul Quin filed 3 June 2026 [12(f)]. 3 Affidavit of Gregory Paul Quin filed 3 June 2026 [12(b)], 'GPQ-6'. 4 Affidavit of Gregory Paul Quin filed 3 June 2026 [32]. -- 3 of 7 -- [2026] WASC 289 HILL J Page 4 6 The Company operated the 'Brighton Hotel' from leased premises located in Mandurah, Western Australia.5 7 Based on the investigations that have been undertaken since his appointment as liquidator of the Company, Mr Quin believes:6 (a) the Company did not conduct any business in any capacity except in the capacity as trustee of the BHC Trust; and (b) the Company does not own assets in its own right, but rather holds all assets as trustee of the BHC Trust. 8 On his appointment, Mr Quin engaged valuers and auctioneers to provide a valuation of the Company's plant, equipment and stock, but for commercial reasons has not caused a detailed valuation of the Company's assets to be undertaken.7 9 On 29 April 2026, Mr Quin received an offer from the Company's landlord to purchase the Company's assets. Subsequently, on 4 May 2026, Mr Quin issued a tax invoice to the landlord and advised that the sale of the Company's assets was conditional on an order being made by the court appointing Mr Quin as receiver of the Trust.8 Service of the application 10 On the basis of Mr Mavrick's affidavits, I am satisfied that the Australian Securities and Investments Commission (ASIC) has been served with all documents filed by the plaintiffs, as required by the Supreme Court (Corporations) (WA) Rules 2004. Should the plaintiff be appointed as receiver and manager of the Trust's assets? 11 The first plaintiff seeks to be appointed as receiver and manager of the assets and undertakings of the Trust pursuant to s 25(9) of the Supreme Court Act 1935 (WA) and to be given the ability to exercise all the powers of a liquidator under s 477 of the Act to enable the sale or distribution of the assets of the Trust. 12 Where a company has been removed as trustee of the trust by reason of the terms of the trust deed, the company retains the right to 5 Affidavit of Gregory Paul Quin filed 3 June 2026 [12(d), (g)]. 6 Affidavit of Gregory Paul Quin filed 29 June 2026 [5]. 7 Affidavit of Gregory Paul Quin filed 3 June 2026 [24] - [26]. 8 Affidavit of Gregory Paul Quin filed 3 June 2026 [28]. -- 4 of 7 -- [2026] WASC 289 HILL J Page 5 hold trust assets as bare trustee but does not have the power to sell those assets to satisfy that indemnity in the absence of an order from the court.9 The court can either grant relief to authorise the sale of trust property or appoint the liquidator as receiver over the trust assets.10 13 The court has power to appoint a receiver pursuant to s 25(9) of the Supreme Court Act 1935 (WA) when it appears to the court that the appointment is just and convenient. Once the sale of the trust assets has occurred, the proceeds may be appropriated by way of exoneration as part of the conduct of the liquidation in accordance with the statutory priorities set out in pt 5.6, div 6 of the Act.11 14 In this case, I accept by reason of cl 19.1 of the Trust Deed that on the appointment of the first plaintiff as liquidator of the Company, the Company ceased to be the trustee of the Trust. As a consequence, the Company is now a bare trustee and does not have the power to sell or otherwise deal with the assets of the Trust. 15 On the evidence before me, there are no obvious conflicts that would disentitle the first plaintiff from being appointed as receiver and manager. On this basis I accept it is expedient for the first plaintiff to have the power to sell the property of the Trust and for the first plaintiff to be appointed as receiver and manager of the Trust without security. In my view, this appointment will facilitate the external administration of the Company and aid in the vindication of the Company's right of indemnity out of the assets of the Trust. Should directions be made pursuant to s 90-15 of the IPS? 16 In their minute of proposed orders, the plaintiffs also seek directions that they would be acting properly and are justified in proceeding on the basis that the Company's sole business was to act as trustee of the Trust, that the business and assets of the Company are comprised of the assets of the Trust, and that all the creditors of the Company are creditors of the Trust. 9 See Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310 [44], [85] - [91] (Allsop CJ), [139], [142] (Siopis J) and [198] (Farrell J); Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 [22] - [28] (Gordon J). 10 Jones v Matrix Partners Pty Ltd; Re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [44] (Allsop CJ); [196] (Farrell J) 11 Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524 [55] - [58] (Kiefel CJ, Keane & Edelman JJ), [95] - [97] (Bell, Gageler & Nettle JJ), [171] (Gordon J). -- 5 of 7 -- [2026] WASC 289 HILL J Page 6 17 Pursuant to s 90-15(1) of the IPS, the court may make such orders as it thinks fit in relation to the external administration of the company. It is accepted by the courts that this power is extremely broad. The principles which govern the exercise of the power can be briefly summarised as follows: (a) The power is intended to facilitate the liquidator's performance of their functions and should be interpreted widely to give effect to that purpose. (b) The court may give a direction where it is just and beneficial to the liquidation to do so. (c) The function of the power is to give the liquidator advice as to the proper course of action to take in the liquidation. (d) The court will not give a direction as to a matter of commercial or business judgment. It is necessary for there to be a legal issue of substance or procedure including an issue of power, proprietary or reasonableness. 18 On the evidence before me, I accept that the Company has only acted as a trustee of the Trust and in no other capacity. On that basis, I accept that all of the Trust assets held by the Company were held in its capacity as trustee of the Trust, and that all creditors of the Company are creditors of the Trust. 19 I accept that the application for directions concerns an issue of power of the liquidator to deal with the assets and that accordingly it is appropriate to make the direction sought. Conclusion and orders 20 The plaintiffs also seek orders which require service of the court's orders on the creditors of the Company and allow for any aggrieved party to apply to the court to vary or vacate these orders. I am satisfied that these orders appropriately protect the creditors of the Trust from any possible prejudice that might otherwise arise from these orders. 21 The plaintiffs seek orders for the payment of Mr Quin's reasonable remuneration out of the Trust property, as well as the costs of this application be payable from the assets of the Trust. In my view, these are appropriate orders in the circumstances of this matter. -- 6 of 7 -- [2026] WASC 289 HILL J Page 7 22 For these reasons, I am satisfied it is appropriate to make orders broadly in terms of the plaintiffs' minute of proposed orders dated 1 July 2026. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. VA Associate to the Hon Justice Hill 20 JULY 2026 -- 7 of 7 --